Citation Nr: 0118833
Decision Date: 07/19/01 Archive Date: 07/24/01
DOCKET NO. 99-12 694 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for a left ankle
disability.
2. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for a
fungal disease involving the right foot.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
R.P. Harris, Counsel
INTRODUCTION
The appellant had active service from May 1966 to March 1970.
Historically, in a January 1984 rating decision, service
connection was denied for a fungal disease involving the
feet. Appellant was timely notified of that adverse
decision, but did not file a timely Notice of Disagreement
therewith. The January 1984 rating decision represents the
last final decision of that issue. Evans v. Brown, 9 Vet.
App. 273, 285 (1996).
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a July 1998 rating decision by the St.
Petersburg, Florida, Regional Office (RO), which denied
reopening of a claim of entitlement to service connection for
a fungal disease involving the right foot and denied service
connection for a left ankle disability. A "Travel Board"
hearing was held before the undersigned Board member in April
2001.
FINDINGS OF FACT
1. A left ankle fracture or other abnormality was not
clinically or radiographically shown in service or on service
separation examination. Any chronic left ankle disability
was initially medically shown decades after service, after an
industrial-related injury.
2. By a January 1984 rating decision, service connection was
denied for service connection for a fungal disease involving
the feet. Later that month, appellant was sent written
notice of that adverse rating decision with his procedural
and appellate rights, but he did not timely express
disagreement with that rating decision.
3. Additional evidence submitted subsequent to said
unappealed January 1984 rating decision, which in part denied
service connection for a fungal disease involving the right
foot, when viewed in the context of all the evidence, does
not bear directly and substantially upon the specific matter
under consideration and is not so significant that it must be
considered in order to fairly decide the merits of the claim.
CONCLUSIONS OF LAW
1. A chronic left ankle disability was not incurred in or
aggravated by appellant's wartime service. 38 U.S.C.A.
§ 1110 (West 1991); 38 C.F.R. § 3.303 (2000).
2. Evidence received subsequent to the unappealed January
1984 rating decision, which in part denied service connection
for a fungal disease involving the right foot, is not new and
material, and the claim is not reopened. 38 U.S.C.A.
§§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a),
20.302(a) (2000); Manio v. Derwinski, 1 Vet. App. 140 (1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Service Connection for Left Ankle Disability
During the pendency of this appeal there was a change in the
law concerning development of the appellant's claim and the
VA's duty to assist in that development. See Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096
(2000) (to be codified at 38 U.S.C.A. § 5100 et. seq.). The
Board has reviewed the instant appeal mindful of that new law
and concludes that there is no reason to remand this claim.
The RO has obtained appellant's service medical records,
including a September 1968 radiographic report of the left
foot and a February 1970 service separation examination
report, which are probative as to whether any chronic in-
service left ankle disability occurred. That February 1970
service separation examination report is particularly
probative, since it assesses his health status shortly prior
to service discharge. Additionally, numerous private and VA
post-service clinical records have been associated with the
claims folder, which indicate that appellant sustained an
industrial-related left ankle injury in 1996. Certain
records have also been submitted at a recent "Travel Board"
hearing (with a waiver of agency of original jurisdiction
consideration). During said hearing, appellant testified
that although he had received relevant treatment by a certain
private physician, that physician was deceased and any
relevant records destroyed.
Additionally, appellant's available clinical records in
connection with state workers' compensation claims filed by
him are associated with the claims folder. A May 1998
statement from a state workers' compensation administrator
indicated that appellant had sustained an unspecified left
leg injury in April 1979. However, a May 1998 written
response to an attempt to obtain the actual workers'
compensation file on said 1971, 1975, 1979, and 1981 workers'
compensation claims indicated that the file had been
destroyed. There is no indication that other relevant
medical records exist that would indicate that any left ankle
disability is related to service. Since a chronic left ankle
disability was clearly not shown in service or prior to an
industrial-related injury decades after service, and an ankle
fracture was not radiographically shown in service or
confirmed after service, obtaining a medical opinion as to
the etiology of any current left ankle disability would not
likely provide any significant benefit.
It should be added that with respect to this service
connection claim, appellant and his representative have been
informed by the RO of the specific reasons that said service
connection claim was denied. See, in particular, an April
1999 Statement of the Case. Additionally, that Statement
included provisions of law with respect to service connection
principles. Furthermore, in a written statement received in
August 1999, appellant's representative presented substantive
arguments on the merits of that service connection claim. It
is therefore apparent that they were knowledgeable regarding
the necessity of competent evidence to support this service
connection claim. Thus, it is concluded that appellant and
his representative had notice of the type of information
needed to support the claim and complete the application.
See Robinette v. Brown, 8 Vet. App. 69, 77 (1995). See also
Epps v. Brown, 9 Vet. App. 341, 344 (1996), wherein the Court
explained that "[t]he Robinette opinion held that 38 U.S.C.
§ 5103(a) imposes an obligation upon the Secretary to notify
an individual of what is necessary to complete the
application in the limited circumstances where there is an
incomplete application which references other known and
existing evidence." See also Veterans Claims Assistance Act
of 2000.
Thus, the Board has examined the record and determined that
the VA does not have any further obligation to assist in the
development of appellant's claim for service connection for a
left ankle disability. The Board must decide the case based
on the evidence of record. See 38 C.F.R. § 19.4 (2000).
In deciding this service connection issue, the Board will
consider applicable statutory and regulatory provisions,
including the following: Service connection may be granted
for disability resulting from disease or injury incurred in
or aggravated by wartime service. 38 U.S.C.A. § 1110. In
pertinent part, for the showing of chronic disease in
service, there are required a combination of manifestations
sufficient to identify the disease entity, and sufficient
observation to establish chronicity at the time, as
distinguished from merely isolated findings or diagnoses
including the word "Chronic." Continuity of symptomatology
is required only where the condition noted during service (or
in the presumptive period) is not, in fact, shown to be
chronic, or where the diagnosis of chronicity may
legitimately be questioned. When the fact of chronicity in
service is not adequately supported, then a showing of
continuity after discharge is required to support the claim.
38 C.F.R. § 3.303(b). Service connection may be granted for
any disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
In Pond v. West, 12 Vet. App. 341, 346 (1999), the Court held
that "[g]enerally, to prove service connection, a claimant
must submit (1) medical evidence of a current disability, (2)
medical evidence, or in certain circumstances lay testimony,
of in-service incurrence or aggravation of an injury or
disease, and (3) medical evidence of a nexus between the
current disability and the in-service disease or injury."
The available service medical records reveal that in
September 1968, appellant's left foot was x-rayed in order to
rule out a fracture. The radiographic report noted a history
of appellant dropping a table on his foot. No fracture was
radiographically noted. Significantly, the remainder of the
service medical records, including a February 1970 service
separation examination report, did not include any specific
complaints, findings, or diagnoses pertaining to a chronic
left ankle disability. Moreover, a September 1983 initial
application for VA disability benefits makes no mention of
any left ankle disability or relevant post-service treatment.
Private and VA medical records dated in the 1980's and early
1990's make no mention of any left ankle disability. A May
1998 statement from said state workers' compensation
administrator indicated that appellant had also sustained an
unspecified left leg injury in April 1979. It is of
substantial import that the earliest post-service clinical
evidence of a left ankle disability was not until June 1996,
more than two and a half decades after service, when VA x-
rays of the left foot were interpreted as showing a likely
old medial malleolar fracture. However, the radiographic
report noted that the fracture was not clearly identified
because it was an x-ray of the foot [not the ankle itself].
The imprecision inherent in this attempt to detect an ankle
fracture by interpretation of an x-ray of the entire foot
rather than an x-ray directed at just the ankle is also
suggested by subsequent November 1996 emergency room x-rays
of just the left ankle, which showed no fracture, arthritis,
or other abnormality of that ankle. A November 1996 private
clinical record reported that appellant reportedly stepped in
a hole as he got off a forklift at work earlier that month,
sustaining a left lower leg injury. A Grade II left ankle
sprain was assessed. Although it was noted at that time that
appellant recalled injuring the left ankle approximately 15
years earlier with what he had been told was a small chip
fracture, this prior trauma would still be about a decade
after service. A November 1996 workers' compensation report
of injury stated that he had torn the Achilles tendon of the
left ankle after stepping off a forklift. Thus, these
negative pieces of evidence strongly and persuasively suggest
that since no left ankle fracture or other chronic left ankle
disability was clinically shown until decades after service
and subsequent to industrial-related trauma to that lower
extremity, a chronic left ankle disability was not incurred
in or aggravated by service.
The Board has considered a February 1998 VA podiatric
treatment record, which noted left ankle pain, a history of
in-service fracture, and foot/arch pain chronic since
Vietnam. However, it is apparent that this record merely
provides an unsubstantiated medical history which is of very
minimal, if any, evidentiary value, particularly since the
actual in-service radiographic findings do not show a
fracture; and any left ankle disability was initially
clinically shown decades after service subsequent to
industrial-related trauma.
Appellant contends and has testified, in essence, that the
claimed left ankle disability was related to service.
However, appellant is not competent to offer medical opinion
or diagnosis. In Espiritu v. Derwinski, 2 Vet. App. 492, 494
(1991), the Court stated "[a] layperson can certainly
provide an eye-witness account of a veteran's visible
symptoms." However, as the Court further explained in that
case, "the capability of a witness to offer such evidence is
different from the capability of a witness to offer evidence
that requires medical knowledge such as a diagnosis...."
Here, although appellant is competent to state that he
experienced certain in-service symptomatology, he is not
competent to opine as to the cause or etiology of the claimed
left ankle disability, since that requires medical opinion
beyond a lay person's competence.
Thus, since the negative evidence as discussed above
overwhelms any positive evidence, and persuasively suggests
that any chronic left ankle disability currently manifested
is not related to appellant's service, the claim for service
connection for a chronic left ankle disability is denied.
38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Since the
preponderance of the evidence is against allowance of said
appellate issue, the benefit-of-the-doubt doctrine is
inapplicable, for the aforestated reasons. 38 C.F.R. § 3.102
(2000).
II. Whether New and Material Evidence has been Submitted to
Reopen a Claim of Entitlement to Service Connection for a
Fungal Disease Involving the Right Foot
With respect to the issue of whether new and material
evidence has been submitted to reopen the claim of
entitlement to service connection for a fungal disease
involving the right foot, "new" evidence means more than
evidence which was not previously physically of record, and
must be more than merely cumulative. To be "material"
evidence, it must by itself or in connection with evidence
previously assembled be so significant that it must be
considered in order to fairly decide the merits of the claim.
38 C.F.R. § 3.156(a); and Hodge v. West, 155 F.3d 1356 (Fed.
Cir. 1998). The January 1984 rating decision, which denied
service connection for a fungal disease involving the feet,
is final, since appellant was notified and did not perfect an
appeal as to this issue. Thus, said final January 1984
rating decision may not be reopened, in the absence of new
and material evidence. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R.
§§ 3.104(a), 3.156(a), 20.302(a); Manio.
With regards to a preliminary matter, the Board must examine
the record and determine whether the VA has any further
obligation to assist in the development of this claim to
reopen the service connection claim for a fungal disease
involving the right foot. After reviewing the record, the
Board is satisfied that all relevant facts have been properly
developed and that no useful purpose would be served by
remanding this issue with directions to provide additional
assistance to the appellant. See Counts v. Brown, 6 Vet.
App. 473 (1994) and Graves v. Brown, 8 Vet. App. 522, 525
(1996), wherein the Court held that:
[W]hen a veteran has made an application
to reopen a claim and the Secretary is on
notice of evidence which may prove to be
new and material but has not been
submitted with the application, the
Secretary has a duty under section 5103
to inform a claimant of the evidence that
is "necessary to complete the
application."
The Board finds that appellant and his representative were
knowledgeable regarding the necessity of competent evidence
showing that said disability is related to service. See, in
particular, an April 1999 Statement of the Case, which set
out the applicable provisions of 38 C.F.R. § 3.156(a) and the
need for "new and material" evidence to reopen said claim
at issue. Additionally, it does not appear that appellant or
his representative has informed the VA of the existence of
any specific competent evidence that might prove to be new
and material concerning said appellate issue. See Graves, at
8 Vet. App. 525.
Under the Veterans Claims Assistance Act of 2000, new duty to
assist provisions include requiring VA to provide medical
opinion when such opinion is necessary to make a decision on
a claim. However, it appears that such duty to assist
provisions requiring examinations or medical opinions are
dependent on whether "new and material" evidence has been
submitted to reopen the claim. See, in particular,
38 U.S.C.A. § 5103A(f) and 38 U.S.C.A. § 5108 (West 1991).
The evidence previously considered in the final January 1984
rating decision, which denied service connection for a fungal
disease involving the feet, included a February 1966 service
induction examination report. Clinically, right foot fungal
disease was neither reported nor diagnosed. Although in an
attendant medical questionnaire, appellant reported having
had "foot trouble" and a physican's elaboration noted
dermatophytosis, that physician did not specifically describe
the bodily area involved. In any event, the appellant's
service medical records revealed that although in July 1966,
he sought treatment for an unrelated skin condition, there
were no complaints, findings, or diagnoses pertaining to a
fungal disease involving the right foot during service or on
February 1970 service separation examination. Although in an
attendant service separation examination medical
questionnaire, he complained of an unrelated skin condition,
a physician's elaboration noted that that unrelated skin
condition was asymptomatic and a fungal disease involving the
right foot was not mentioned. In a September 1983 initial
application for VA disability benefits, appellant alleged
having incurred jungle rot involving the feet in 1968 with
subsequent in-service treatment; however, he listed post-
service civilian treatment only for an unrelated condition.
Based on the evidence then of record, the January 1984 rating
decision determined that jungle rot involving the feet was
not shown by the evidentiary record.
The evidence received subsequent to said January 1984 rating
decision is not new and material. The clinical evidence
includes numerous private and VA medical statements or
records that are irrelevant, since they are dated many years
after service and do not in any way relate any fungal disease
involving the right foot to service. See, for example,
private medical records dated in the 1980's and early 1990's,
pertaining to unrelated conditions. VA clinical records
dated in June 1996 reveal that appellant alleged that in
Vietnam, he had "jungle rot", although the examiner noted
that there was no record of that. He had a history of adult-
onset diabetes mellitus, and clinically, right great toe
fungus was noted. In August 1996, he had
elongated/hypertrophic toenails. A right hallux toenail was
surgically removed. Additionally, an approximate 10-year
history of scaly plaques involving various bodily areas but
not the feet was reported; and psoriasis was assessed.
Although an August 1996 clinical record noted a macular rash
involving various bodily areas including the feet, it was
noted that appellant had recently been prescribed Septa for
an unrelated condition; and an allergic reaction was
assessed.
Although a February 1998 VA podiatric treatment record noted
a history of a toenail having been removed from the right
large toe a year ago and was "related to fungus-Vietnam",
this recorded history does not even constitute competent
medical evidence. See LeShore v. Brown, 8 Vet. App. 406, 409
(1995), which held that "[e]vidence which is simply
information recorded by a medical examiner, unenhanced by any
additional medical comment by that examiner, does not
constitute [']competent medical evidence['] satisfying the
Grottveit [v. Brown, 5 Vet. App. 91 (1993)] requirement."
See also Reonal v. Brown, 5 Vet. App. 458, 461 (1993), which
held that a physician's statement, relying upon a claimant's
account of his medical history and service background, was
not material evidence to reopen a service connection claim.
It should be added that appellant's representative, in an
August 1999 written statement, acknowledged therein that
"review of the record further notes there is no evidence of
the appellant being treated for fungus, or jungle rot while
in service or post service", and referred to that February
1998 medical record as "based on history given to [medical
provider] by the appellant...that the appellant had his right
big toe nail removed approximately one year prior due to
fungus."
The critical point is that none of the competent evidence
submitted subsequent to said January 1984 rating decision,
which in part denied service connection for a fungal disease
involving the right foot, indicates that appellant has a
fungal disease involving the right foot related to service.
The Board has considered appellant's contentions and
testimony. However, lay assertions of medical causation are
not sufficient to reopen a claim under 38 U.S.C.A. § 5108.
Moray v. Brown, 5 Vet. App. 211, 214 (1993).
Thus, additional evidence submitted subsequent to said
January 1984 rating decision, which in part denied service
connection for a fungal disease involving the right foot,
when viewed in the context of all the evidence, does not bear
directly and substantially upon the specific matter under
consideration; and is not so significant that it must be
considered in order to fairly decide the merits of said
claim. Since new and material evidence has not been
submitted, the claim for service connection for a fungal
disease involving the right foot is not reopened.
38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156(a),
20.302(a). The benefit-of-the-doubt doctrine is
inapplicable, since new and material evidence has not been
submitted to reopen the claim. Annoni v. Brown, 5 Vet. App.
463 (1993).
ORDER
Service connection for a left ankle disability is denied.
New and material evidence has not been submitted to reopen a
claim of entitlement to service connection for a fungal
disease involving the right foot, and, therefore, that claim
is denied. The appeal is denied in its entirety.
LAWRENCE M. SULLIVAN
Member, Board of Veterans' Appeals